Dismay and disappointment at Department of Health pressing ahead with plans cap costs in clinical negligence without waiting to see the evidence or considering the implications

Published: 29 Jan 2017

AvMA is warning that Department of Health proposals for capping legal costs recoverable in clinical negligence cases, due to be published this week, could have serious unintended consequences for access to justice and for patient safety.

AvMA also questions the timing of the proposals, which come before seeing the outcome of current reviews by the Ministry of Justice into the effect of the previous legal reforms through the Legal Aid Sentencing and Punishment of Offenders Act (LASPO); by Lord Justice Jackson into the very notion of fixed costs in civil litigation; and by the National Audit Office into the role of the NHS Litigation Authority in reducing (or increasing, as the case may be) legal costs.

AvMA Chief Executive Peter Walsh said:

“The proposals as they have been explained so far would seriously harm both access to justice and patient safety. We are deeply disappointed that, against our advice, the Department has pressed ahead with these proposals without even waiting to learn about the impact of earlier reforms which are reducing costs; what the NAO has to say about the role of the NHSLA; or what Lord Justice Jackson’s review has to say about fixed costs.”

“We would never condone solicitors claiming over-the-top legal fees, but this is very rare and is already controlled by the courts. The NHS Litigation Authority is also able to challenge costs where there is a case for doing so. In our experience, high costs are usually a result of the NHS not investigating incidents properly and dragging out claims with unreasonable denials of liability. However, it seems the department has taken no account at all of defendant behaviour unnecessary escalating costs.”

“We will respond in detail once the consultation document is published, but based on what we know so far, these proposals would deny access to justice in some of the most serious cases, make the NHS unchallengeable, and prevent lessons being learnt. The human costs in these cases far outweigh the financial costs and are perfectly avoidable if patient safety is improved.”